1. Employees' State Insurance Corporation (herein after referred to as ESI Corporation) has preferred this appeal challenging the judgment and order dated 19.8.2004 passed by the learned E.S.I. Court at Guwahati in ESI Case No. 2 of 2002 . The aforesaid E.S.I. case arose out of an application filed by M/S Hotel Geetanjali of Silchar town under Section 75 of the Employees State Insurance Act, 1948 ( hereinafter referred to as Act ) challenging notice dated 8.2.2002 and observation slip dated 14.2.2001. The applicant of the aforesaid ESI case stated that it is a hotel run and managed by M/S Paul Traders, a partnership firm and is a shop registered under the Shops and Establishments Act. It has 16/17 number of employees in the establishment. It is claimed that hotel is not a factory within the meaning of Factories Act but authorities of the ESI Corporation compelled them to pay 4.75 % of the wages of the insured employees towards the employer contribution under the ESI Act. According to the applicant, ESI Act does not have any application to Geetanjali hotel as it does not involve any manufacturing process and is not a factory within the meaning of Factories Act. It is stated that on 14.2.2002 , respondent No.2 visited the hotel and asked for the attendance -cum-salary register, balance sheet etc.They noted LPG Cylinder, water boiler machine in the establishment and presumed that it is a factory under Section 2(12) of the ESI Act w.e.f. 1.8.1999. Accordingly, an observation slip was issued to the applicant describing their establishment to be covered under the ESI Act. Subsequently on 8.2.2001, respondent No. 1 issued notice alleging that petitioner did not comply with the provision of the ESI Act and so proceeding under Section 85/85 © of the ESI Court was threatened. It is under such circumstance, the application was filed under Section 75 of the ESI Act praying for adjudication to the effect that M/S Geetanajali Hotel is not covered by ESI Act and the scheme and so the impugned notice and the observation slip have no binding effect on the hotel. Upon receipt of the application under Section 75 of the ESI Act, learned court registered ESI Case No.2 of 2002 and issued notice to the respondents who appeared and submitted written statement. Upon receipt of the application under Section 75 of the ESI Act, learned court registered ESI Case No.2 of 2002 and issued notice to the respondents who appeared and submitted written statement. In para-5 of the application, the respondents of the proceeding claimed that subject hotel is carrying on business of fooding and lodging and that it used LPG cylinder for cooking in the kitchen and also used electric power for grinding machine, water boiler etc. Respondents denied the case of the petitioner and asserted that it is a factory within the meaning of Factories Act and so provision of the ESI Act are very much applicable to the same. Upon such rival contention of the parties, the learned court permitted the parties to lead their evidence. 2. Petitioner examined two witnesses and adduced documentary evidence while respondents examined one witnesses as DW-1 and also exhibited some documents. 3. Upon consideration of the materials placed by the parties on record and on hearing them, learned ESI court passed a judgment on 19.8.2004 holding inter-alia that action sought to be taken under Section 45-A of the ESI Act was not preceded by personal hearing and so it was vitiated. The learned court also arrived at the finding that hotel was meant only for lodging and it was not a factory within the meaning of Section 2(12) of the ESI Act inasmuch as there was nothing on record to hold that it was hotel -cum-restaurant. With these findings, the ESI Case No.2 of 2002 was allowed declaring that hotel Geetanjali is not covered by provision of ESI Act. It is this judgment which has been brought under challenge before this court. At the time of admission of the appeal on 13.2.2004, no substantial question of law was framed as required under Section 82 of the ESI Act, 1948. 4. I have heard Mr. KK Nandi, learned counsel for the appellant and Mr. LP Sharma, learned counsel for the respondent. 5. The learned counsel for the appellant submits that there are substantial question of law involved in this case and upon hearing the parties appropriate substantial question of law may be framed and appeal be decided accordingly. Upon such submission, this court has considered the materials available on record and heard the learned counsel of both sides. 5. The learned counsel for the appellant submits that there are substantial question of law involved in this case and upon hearing the parties appropriate substantial question of law may be framed and appeal be decided accordingly. Upon such submission, this court has considered the materials available on record and heard the learned counsel of both sides. It is the specific case of the appellant that the respondent hotel is a factory within the meaning of Section 2(12) of the ESI Act . It is claimed that DW-1 visited the hotel and found 16/17 working in the same. DW-1 asked hotel management to produce the attendance-cum- wage register and the balance sheet. Calling attention of the court to the observation slip which is Exhibit- 2 in the LCR, learned counsel would argue that the copy of the observation slip was given to the appellant on the date of inspection itself and he gave his signature in acknowledgment of the receipt of the copy. Exhibit-2 itself contains a recital to the effect that hotel Geetanjali is a hotel-cum-restaurant. I have perused observation slip. In the observation slip it is mentioned as follows: “In exercise of power conferred upon us under section 45 of the ESI Act, 1948 we have jointly visited the above noted hotel today in order to verify their records so as to examine applicability of the act. Sri Satyendra Acharjee- Accountant & Debotosh Das, Chief Accountant attended us and produced attendance-cum-salary wage register in the hotel and restaurant & Balance sheet for 1999-2000. According to the said register total 17(seventeen) employees found to have been working since 1.8.1999 & according to Balance sheet Rs.66570/- found to have been booked in excess in the salary head for 1999-2000. On asking it has been reported that this amount related to payment/salary made to casual workers but relevant vouchers could not be made available.” 6. In the observation slip it is mentioned that Accountant Satyandra Acharjee and Debotosh Das produced attendance-cum- salary register in the hotel and restaurant. The learned counsel emphatically makes mention of the word 'hotel and restaurant' appearing in Exhibit-2 to show that on its own showing the hotel described itself to be a hotel and restaurant. The observation slip (Exhibit-2) seeks to show that the name 'hotel and restaurant' is discernible from the salary wage register itself. Salary wage register was exhibited as Exhibit-5 in this case. The observation slip (Exhibit-2) seeks to show that the name 'hotel and restaurant' is discernible from the salary wage register itself. Salary wage register was exhibited as Exhibit-5 in this case. I have seen the register and permitted the learned counsel for the appellant and the respondents to go through the same. Nowhere in the register, there is any mention of the words 'hotel and restaurant'. The indication made in Exhibit- 2, therefore, as to Hotel Geetanjali being a hotel-cum-restaurant does not get any support at least from attendance-cum- salary register of the hotel. PWs-1 and 2 have specifically stated that the LPG cylinder and the kitchen in the hotel is meant for its employees and it runs business for lodging only. Under such circumstances if the appellant ESI corporation was of the view that apart from lodging business the hotel was also involved in the business of fooding as claimed in the written statement, in that event ESI Corporation was duty bound to bring such evidence on record to show that hotel Geetanjali was not only a hotel but also hotel-cum-restaurant. DW-1 in his deposition does not say that he had taken food in the hotel or that he has not seen anybody taking food in the hotel. By merely spotting LPG cylinder and Grinding machine, a presumption was drawn that the hotel was involved in fooding as well as lodging. On pointed question, the learned counsel for the appellant could not provide any information as to whether any enquiry was made by DW-1 to find out whether Geetanjali was licensed under the SARAI Act. Thus, materials available on record do not give any indication as to whether respondent is a hotel-cum-restaurant. 7. Mr. LP Sharma, learned counsel has placed reliance on the case of Hotel New Nalanda -vs- Regional Director, ESI Corporation reported in 2009 (14) SCC 558 . Calling attention to para-16 to 20 of the said Judgment the learned counsel would argue that mere presumption on the part of DW-1 cannot take place of proof. It is the duty of the ESI corporation to establish that manufacturing process was involved in the establishment with the aid of power. Calling attention to para-16 to 20 of the said Judgment the learned counsel would argue that mere presumption on the part of DW-1 cannot take place of proof. It is the duty of the ESI corporation to establish that manufacturing process was involved in the establishment with the aid of power. Unless the links are established to show that some process or work is carried out in the establishment which qualifies manufacturing process and the manufacturing process is carried on with the aid of power, mere presence of LPG cylinder or grinding machine or water heater would not make the establishment of a factory and so there is no material to come to a finding that hotel is covered under the provision of the ESI Act. Para-16 to 20 is quoted below: “16.We are unable to appreciate the way the High Court considered the evidence and deemed fit to interfere with the finding of fact recorded by the Insurance Court. The High Court seems to have taken the inspection report exhibit D2 and the testimony of the Insurance Inspector DW1 as non-rebuttable, conclusive pieces of evidence. Further, for filling-up what remained unsaid in the inspection report and the testimony of DW1, it took recourse to presuming that the establishment must have kitchen where food would be cooked using the two appliances running with the aid of power. 17. The High Court did not even advert to the reasons given by the Insurance Court for not accepting the Corporation's case on that issue. The Insurance Court had rightly pointed out that the inspection report did not state the process or the work that was called `the manufacturing process'. It did not even say that the refrigerator and the grinder were used in connection with cooking food in the establishment. 18. For holding an establishment to be a `factory' within the meaning of section 2(12) of the Act it must first be established that some work or process is carried on in any part of the establishment that amounts to `manufacturing process' as defined under section 2(k) of the Factories Act, 1948. In case the number of persons employed in the establishment is less than twenty but more than ten then it must further be established that the manufacturing process in the establishment is being carried on with the aid of power. 19. In case the number of persons employed in the establishment is less than twenty but more than ten then it must further be established that the manufacturing process in the establishment is being carried on with the aid of power. 19. Further, the use of power in the manufacturing process should be direct and proximate. The expression `manufacturing process being carried on with the aid of power' in section 2(12) of the Act does not mean a very indirect application of power such as use of electric bulbs for providing light in the work-area. 20. Unless the links are established, that is to say, it is shown that some process or work is carried on in the establishment which qualifies as `manufacturing process' within the meaning of section 2(k) of the Factories Act and the manufacturing process is carried on with the aid of power, the mere presence of a refrigerator and a grinder there, even though connected to the main power line may not necessary lead to the inference that the establishment is a factory as defined under section 2(12) of the Act. 21. On hearing counsel for the parties and on a careful consideration of materials on record we are satisfied that the Insurance Court had come to a reasonable finding of fact. Against this finding neither any appeal was maintainable under section 82(2) of the Act nor was the High Court justified in interfering with it. We, accordingly, find the judgment of the High Court unsustainable. It is set aside. In the result the appeal is allowed but with no order as to costs.” 8. Mr. LP Sharma further submits that in a similar case, this court considered the evidence on record and found that the employees of ESI corporation did not discharge its essential burden that manufacturing process with the aid of power was done by hotel. The said judgment was delivered on 4.3.2015 by this Court in MFA No. 137 of 2004 in the case of ESI -vs- Hotel Siddanth. I have perused both the judgments. 9. Considering the evidence available on records and after perusal of the aforesaid judgment , it appears that the finding arrived at by the learned trial court to the effect that respondent hotel is not factory within the meaning of Factories Act is based on the materials on records. I have perused both the judgments. 9. Considering the evidence available on records and after perusal of the aforesaid judgment , it appears that the finding arrived at by the learned trial court to the effect that respondent hotel is not factory within the meaning of Factories Act is based on the materials on records. ESI Corporation has failed to prove any evidence on record to arrive at the finding to the contrary. In the absence of any material against this finding, it is no possible to hold that finding of the court as referred to above is perverse. On consideration of entirety of the case, this court does not find any substantial question of law involved in the case. Accordingly, the appeal stands dismissed. 10. No order as to cost. Send down the records.